Render v. FCA US, LLC

53 F.4th 905

Edward RENDER, Plaintiff-Appellant,

v.FCA US, LLC, Defendant-Appellee.

No. 21-2851

United States Court of Appeals, Sixth Circuit.

Argued: June 1, 2022

Decided and Filed: November 16, 2022

ARGUED: Eric Stempien, STEMPIEN LAW, PLLC, Livonia, Michigan, for Appellant. Terry Bonnette, NEMETH LAW, P.C., Detroit, Michigan, for Appellee. ON BRIEF: Eric Stempien, STEMPIEN LAW, PLLC, Livonia, Michigan, for Appellant. Terry Bonnette, Nicholas Huguelet, NEMETH LAW, P.C., Detroit, Michigan, for Appellee.

Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.

CLAY, J., announced the judgment, delivered the opinion of the court, in which SUHRHEINRICH and MOORE, JJ., joined, with respect to the retaliation claim, and delivered an opinion with respect to the interference claim. MOORE, J. (pp. 923 – 28), wrote a separate opinion, in which SUHRHEINRICH, J., joined, concurring in part in J. Clay's majority opinion, and delivered the opinion of the court with respect to the interference claim.

CLAY, Circuit Judge.

Plaintiff Edward Render ("Render") sued his former employer, FCA US, LLC ("FCA"), under the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601, et seq. , alleging that FCA wrongfully denied him FMLA medical leave in violation of 29 U.S.C. § 2615(a)(1), and that FCA retaliated against him for requesting FMLA leave in violation of 29 U.S.C. § 2615(a)(2). FCA moved for summary judgment on both claims, which the district court granted. Render v. FCA US LLC , No. 19-12984, 2021 WL 3085401, at *9 (E.D. Mich. July 20, 2021). For the reasons set forth below, we REVERSE the district court's order and REMAND for further proceedings.

I. BACKGROUND

A. Factual Background

Edward Render started working for FCA on January 3, 2013, as an assembly line worker at FCA's Trenton Engine Complex. Eventually he moved into a more specialized position cutting cranks for engines. FCA originally terminated his employment on September 14, 2015, for attendance infractions. But Render filed a grievance through his union representative challenging his termination. Ultimately, FCA conditionally reinstated him on April 10, 2017 and Render agreed to a one year probationary period. Under the terms of his Conditional Reinstatement Letter, FCA could terminate him if he incurred two unexcused tardies or one unexcused absence during his probationary period.

On October 24, 2017, about six months after his reinstatement, Render applied for intermittent FMLA leave. Sedgwick, FCA's third party leave administrator, replied on October 26, 2017, asking Render to provide medical documentation to support his request. Render's doctor then submitted a medical certification form on November 9, 2017. His doctor noted that he needed intermittent FMLA leave to manage his major recurrent depression and moderate/generalized anxiety disorder. The medical certification form noted that Render was unable to perform "[a]ny/all duties related to [his] job during [a] flare-up of symptoms." (Med. Certification Form, R. 22-14, Page ID #190.) Render therefore requested up to three to four days of intermittent leave per month to manage his flare-ups. Sedgwick responded with a second letter on November 14, 2017, with the subject "Approval of Intermittent Employee Medical Leave." (Nov. 14 Sedgwick Letter, R. 22-15, Page ID #191.) The letter conditionally approved Render's request and noted that he could take up to four FMLA leave days per month. However, the letter also noted that Sedgwick would "review [his] eligibility as of [his] first day absent to determine if [he] met all eligibility requirements" at the time he used his leave. (Id. )

The letters from Sedgwick gave Render conflicting instructions about how to call in to use his intermittent FMLA leave days. The first letter from Sedgwick (asking Render for more medical documentation) gave the following instructions:

As a reminder, you are required to report all absences and tardiness in accordance with FCA's mandatory Call-in Procedure. A failure to properly report any absence or tardy from work may result in disciplinary action, up to and including discharge. The Call-in number to report all absences is as follows: 1-800-810-[xxxx]. Absences and tardiness can be reported 24 hours, 7 days/week.

In addition, you must contact the FCA Service Center at 1-888-322-[xxxx] to confirm your first day of absence. You will be advised of your eligibility determination within 5 business days (absent extenuating circumstances) of receiving notice of your first day of absence.

(Oct. 24 Sedgwick Letter, R. 22-13, Page ID #180–81.) But Sedgwick's second letter (approving Render's request for intermittent FMLA leave) gave different instructions:

Actions Required:

1. First Date Absent Notification: Contact Sedgwick at the number listed below on the date of your first FMLA-related absence or tardy. ...

3. Intermittent Absence Time Reporting - Since you have requested intermittent leave, you are required to report all absences and tardiness in accordance with FCA's mandatory Call-in Procedure. A failure to properly report any absence or tardy from work may result in disciplinary action, up to and including discharge. The Call-in number to report all absences is as follows: 1-800-810-[xxxx]. Absences and tardiness can be reported 24 hours, 7 days/week.

(Nov. 14 Sedgwick Letter, R. 22-15, Page ID #191–92.) The letter did not list any other phone number besides the 1-800 number in the "Actions Required" list. Seven paragraphs down from these instructions, the letter included a closing note stating that, "If you have questions, require additional information, or experience a change in your circumstances, please contact the FCA Service Center at 1-888-322-[xxxx] ... to speak with a Customer Service Representative." (Id. at Page ID #192.)

FCA's human resources representative, LaVonda Mitchell, gave contradictory statements at her deposition about how employees were required to report FMLA absences. Generally, employees must report an absence or tardy by calling FCA at the 1-800 number listed in Sedgwick's letters. At first, Mitchell said that there is not a separate call-in line for people who are using FMLA leave. Therefore, employees wishing to use FMLA leave simply needed to call the 1-800 number and report their absence. But Mitchell's summary of the proper procedures changed after she saw the letters that Sedgwick sent to Render. At that point in her deposition, she said that employees had to make two calls: one to FCA (the 1-800 number) and one to Sedgwick. Still, Mitchell did not know how employees were supposed to contact Sedgwick, and she did not know if the 1-888 number belonged to Sedgwick or to FCA.

Render believed that, to use his FMLA leave, he simply had to call the 1-800 number and report his absence. He "didn't realize there was a second number." (Render Dep., R. 22-2, Page ID #144.) He "thought what [FCA and Sedgwick] would do is just have [him] call one number, and they ... would go from there." (Id. )

After his reinstatement in April 2017, Render was tardy three times and absent twice. He incurred an unexcused tardy on September 6, 2017—before he had applied for FMLA leave. After Sedgwick approved his intermittent leave request, he was absent on December 6 and 7, 2017. On December 6, Render called in absent. FCA produced a transcript of this call, which documented the following exchange with someone from "FCA Group Attendance:"

THE OPERATOR: And are you calling in absent or tardy?

MR. RENDER: Absent.

THE OPERATOR: Absent due to what?

MR. RENDER: I'm having a flare-up. I don't feel good at all. ...

THE OPERATOR: Absent due to what?

MR. RENDER: Oh, I gotta go to the doctor. I don't feel good, flare – I'm having flare-ups.

THE OPERATOR: So illness?

MR. RENDER: Yes.

(Call Tr., R. 22-16, Page ID #194.) The operator gave Render a confirmation number and told him to call back if he needed more time. Although FCA had a record of this call, Sedgwick did not.

Render was again absent on December 7. Although he said that he called the 1-800 number again to report his absence, FCA did not have any call records from that day. However, Sedgwick's case notes indicated that Render did call in on December 7. But there is no transcript of this call. Render recalled telling the operator that he "was calling in for FMLA – to use an FMLA day." (Render Dep., R. 22-2, Page ID #143.)

On December 8, 2017, Render called in tardy. FCA produced a transcript of this call. This time, he told the operator that he had "been sick the last few days." (Call Tr., R. 22-16, Page ID #196.) The operator asked whether the tardy was "personal" or "other," to which Render responded "Yeah personal – or other." (Id. ) Like on December 6, Sedgwick's notes did not indicate that Render called in tardy on December 8.

Finally, Render called in tardy again on January 5, 2018. When asked why, Render said he was "having a flare-up right now, and [he didn't] feel good at all." (Call Tr., R. 22-16, Page ID #198–99.) The operator then said, "I put other reasons, in the comments I put sick, ... is that right?" (Id. at Page ID #199.) Render confirmed that was correct. Each of these absences and tardies was marked by FCA as "MISU," meaning miscellaneous unexcused.

At his deposition, Render said that he used the word FMLA each time he called in. He admits, however, that he never specifically mentioned that he was suffering from anxiety and depression related illnesses in any of his calls. Render explained that he "was embarrassed" and he "didn't want to tell them what [he] was really going through." (Render Dep., R. 22-2, Page ID #150.)

At this point, the record gets muddled with documents and testimony about what happened next. Render's case file with Sedgwick includes several entries about his call-ins. In the days after each absence, Sedgwick's notes indicated "Review Pending." Render called Sedgwick on December 8 and spoke with a Sedgwick employee, Joseph Moore. According to Moore's notes from this call,...